On April 17, 2020, Massachusetts bill S. 2640 was signed into law by Governor Charlie Baker. The law provides certain liability protections for the acts or omissions of defined health care professionals, health care facilities and volunteer organizations, occurring during the period of the COVID-19 emergency that was declared on March 10, 2020.
Subject to certain exceptions and restrictions, the law provides that health care professionals and health care facilities are “immune from suit and civil liability for any damages alleged to have been sustained by an act or omission by them in the course of providing health care services during the period of the COVID-19 emergency.”
All of the following factors must be present with regard to health care professionals or health care facilities:
(i) the health care facility or health care professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule and in accordance with otherwise applicable law; (ii) arranging for or providing care or treatment of the individual was impacted by the health care facility’s or health care professional’s decisions or activities in response to treatment conditions resulting from the COVID-19 outbreak or COVID-19 emergency rules; and (iii) the health care facility or health care professional is arranging for or providing health care services in good faith.
The “good faith” requirement in the quoted section above excludes, “without limitation, acts or omissions based on race, ethnicity, national origin, religion, disability, sexual orientation or gender identity, and deceptive acts or practices, and fraud.”
There are carve outs to the immunity, both in the definitions section and elsewhere. For example, the immunity will not apply:
(i) if the damage was caused by an act or omission constituting gross negligence, recklessness or conduct with an intent to harm or to discriminate based on race, ethnicity, national origin, religion, disability, sexual orientation or gender identity by a health care facility or health care professional providing health care services; (ii) to consumer protection actions brought by the Attorney General; or (iii) to false claims actions brought by or on behalf of the Commonwealth.
In addition to health care professionals and health care facilities, there is qualified immunity for certain “volunteer organizations” that are similarly immune from suit and civil liability for damages occurring in or at the organization’s facility, if the damages arise from the use of the facility for the Commonwealth’s response and activities related to the COVID-19 emergency. The immunity is not available if it is established that the damages were caused by the volunteer organization’s gross negligence, recklessness or conduct with intent to harm. Volunteer organizations include any organization, company or institution that makes its facility available to support the Commonwealth’s COVID-19 emergency response and activities.
Health care professionals and facilities would be well advised to review the law carefully, including all definitions and other applicable provisions, to confirm the scope of the immunity.